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Hart v. Thomas

United States District Court, E.D. Kentucky, Central Division

March 30, 2018

BENNIE L. HART, Plaintiff,
v.
GREG THOMAS, in his official capacity as Secretary of the Kentucky Transportation Cabinet, Defendant.

          MEMORANDUM OPINION & ORDER

          Gregory F. Van Tatenhove, United States District Judge

         As private citizens we cannot typically file a lawsuit against a State or Commonwealth. This is an old idea formed under the Kings and Queens of England. The present Motion for Judgment on the Pleadings [R. 14], made by the Commonwealth, previews important First Amendment questions. But, the only question decided here is whether this is one of the limited instances in which the Sovereign, the Commonwealth of Kentucky, can be sued by a private citizen. As explained below, the answer is yes, and consequently, the Motion [R. 14] is DENIED.

         I

         The Court must construe the complaint in the light most favorable to the Plaintiff, accept his allegations as true, and draw all reasonable inferences in his favor. DirecTV, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007). Plaintiff Bennie Hart brings this case against Greg Thomas, in his official capacity as Secretary of the Kentucky Transportation Cabinet. Hart claims he has First Amendment protection for his choice of a vanity license plate with the letters “IM GOD.” [R. 1 at 1.] Prior to moving to Kentucky, Hart resided in Ohio, where he displayed a personalized license plate reading “IM GOD” for twelve years. [R. 1 at 3.] Hart chose this personalized license plate to convey a “philosophical message concerning his views about religion. Specifically, Hart, who identifies as an atheist, asserts that it is impossible to disprove, via the scientific method or otherwise, any individual's assertion that he or she is ‘God'; thus, religious belief is highly susceptible to individual interpretation.” [R. 1 at 4.]

         When Hart moved to Kentucky, he applied for the same license plate. He received a letter in March 2016, from Ainsley W. Snyder, Administrative Branch Manager for Kentucky's Division of Motor Vehicle Licensing, denying his application. [R. 1-1.] The letter stated the license plate was rejected because it did “not meet the requirements of KRS 186.174 and 601 KAR 9:012, Section 5. These laws dictate that a personalized plate may not be vulgar or obscene.” [Id.]

         Next, the Freedom from Religion Foundation (FFRF) sent a letter on Hart's behalf to the then-Commissioner of the Kentucky Department of Vehicle Regulation requesting that the DMV immediately approve the requested personalized plate. [See R. 1 at 5; R. 1-2.] In April 2016, the Senior Counsel for the Office of Legal Services of the Commonwealth of Kentucky replied. [R. 1-3.] Counsel explained that the Commonwealth considers “specialized and personalized plates to be government speech, ” relying on Walker v. Texas Div., Sons of Confederate Veterans, Inc., 135 S.Ct. 2239, 2243 (2015). This letter also clarified that, in fact, Hart's requested plate was not denied due to vulgarity or obscenity, but instead was in violation of 601 Ky. Admin. Regs. 9:012, Section 5(1), stating that plates “offensive to good taste and decency” may be recalled. [R. 1-3.] FFRF replied to this letter disagreeing with its conclusions and distinguishing Walker. [R. 1-4.]

         According to Ky. Rev. Stat. Ann. § 186.005, “[m]otor vehicles other than commercial vehicles should be registered, regulated, and controlled by the Transportation Cabinet and the Justice and Public Safety Cabinet.” Standard license plates in the Commonwealth shall have “three (3) letters of the alphabet and three (3) Arabic numerical digits.” Ky. Rev. Stat. Ann. § 186.005 (West). For an additional fee, individuals can choose a “personalized license plate, ” which instead contains “personal letters or numbers significant to the applicant.” Ky. Rev. Stat. Ann. § 186.174 (West). Individuals who want a personalized plate apply through the county clerk's office in person, but may renew their plate by mail. Id. The application and fee are mailed to the Transportation Cabinet presumably for review, though the statute does not contain that language. Id. Ky. Rev. Stat. Ann. § 186.174 (West) goes on to state that:

A personalized plate shall not be issued that would conflict with or duplicate the alphabetical-numerical system used for regular license plates or any other license plates issued in the Commonwealth, and shall not contain a combination of more than six (6) letters of the alphabet and Arabic numerals, including spaces. A personalized plate shall not be issued if the cabinet determines the request fails to comply with the conditions specified in KRS 186.164(9)(c) to (g).

According to KRS 186.164(9)(c) to (g):

(9) A group wanting to create a special license plate that is not authorized under this chapter on June 20, 2005, shall comply with the following conditions before being eligible to apply for a special license plate: . . .
(c) The group, or the group's lettering, logo, image, or message to be placed on the license plate, if created, shall not discriminate against any race, color, religion, sex, or national origin, and shall not be construed, as determined by the cabinet, as an attempt to victimize or intimidate any person due to the person's race, color, religion, sex, or national origin;
(d) The group shall not be a political party and shall not have been created primarily to promote a specific political belief;
(e) The group shall not have as its primary purpose the promotion of any specific faith, religion, or antireligion;
(f) The name of the group shall not be the name of a special product or brand name, and shall not be construed, as determined by the cabinet, as ...

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